ELR Citation: ELR 20646
No(s). 84-5743 (D.C. Cir Jan 29, 1988)

In the ongoing review of the Secretary of the Interior's Surface Mining Control and Reclamation Act (SMCRA) regulations, the court sustains in part and remands in part regulations concerning, inter alia, prime farmland and pastureland, bonding, regulatory guidance, subsidence damage, jurisdiction over processing and support facilities, hydrologic considerations in permitting, unsuitability designations, mining in national forests, water supply replacement, approximate original contour requirements, topsoil storage, air pollution, and delegability of authority over federal lands. The court first holds that appellant environmental groups have standing to challenge each regulation. The court notes that the prudential component of standing is satisfied, since Congress intended to grant broad standing under SMCRA and appellants' members are among the parties protected by the statute. The court holds that appellants have standing to challenge the Secretary's elimination of minimum national standards in four regulations, since the affidavits of appellants' members sufficiently demonstrate threats of environmental, recreational, and aesthetic injuries that are fairly traceable to the challenged regulations and that are redressable by a favorable decision. The court also holds that the affidavits adequately allege injury-in-fact, rejecting industry attempts to characterize the alleged injuries as speculative by disaggregating each allegation.

On the merits, the court first upholds a regulation establishing revegetation success standards for prime farmland. Section 519(c)(2) authorizes the Secretary to require crop growth, rather than a soil survey, to show effective reclamation of prime farmland, and the court defers to the Secretary's reasoned decision to require crop growth for three years. The court next upholds a regulation establishing revegetation success standards for grazing and pastureland. The Secretary did not act unreasonably in refusing to require actual grazing to show effective reclamation of such land. The court finds it sufficient that the Secretary requires comparison of post-mining vegetation production with a reference area or other approved success standard that measures vegetation production. The court next strikes down two exemptions from the performance standards for restoration of prime farmland. First, the court holds that a regulation allowing permanent water impoundments as a post-mining use of prime farmlands violates §510(d)(1). Moreover, there can be no general exception to §515(b)(7)'s requirement of restoration of the productivity of all mined prime farmland. Section 519(c)(2), which allows release of a reclamation bond only after prime farmland is restored to productivity, also supports the court's holding. Although §515(b)(8) sets performance standards for impoundments constructed on mined land, it does not independently authorize impoundments. Second, the court holds that the Secretary has failed to justify a regulation exempting coal preparation plants and support facilities for surface mines from the performance standards for prime farmland restoration. In particular, the Secretary has not explained why support facilities for surface mines should be treated the same as those for underground mines, despite basic differences between surface and underground mining operations.

The court next upholds two regulations regarding reclamation bonding. First, the court sustains a regulation that allows incremental and phased bonding. The Secretary reasonably interpreted §509(c) to allow alternative bonding methods that achieve the reclamation objectives of SMCRA and rationally concluded that incremental and phased bonding will achieve those objectives. Second, the court upholds a regulation that does not require an underground mining operation to post a bond for restoration of land damaged by subsidence until such damage occurs. The Secretary reasonably concluded that such a bond would be speculative because subsidence damage is difficult to estimate at the outset of underground mining. Section 516(d) allows modification of bond requirements to accommodate distinct differences between surface and underground mining, such as the subsidence problem.

The court next turns to a group of issues on which the Secretary revised regulations to make them less specific. The court remands the Secretary's decision to delete detailed specifications of the information needed in permit applications for operations that might affect essential hydrologic functions of alluvial valley floors. The Secretary's explanation of the deletion was inconsistent and inadequate, and the Secretary must either provide appropriate guidance or explain coherently why it is not needed. The court upholds the Secretary's decision to replace design standards for coal mine waste disposal with performance standards. Section 515(f) is inapposite because the waste piles at issue are not used as dams or embankments. The Secretary reasonably concluded that elimination of a compaction density standard and authorization of variances from a lift requirement are justified and adequately promote waste stability and incombustibility, the goals of §§515(b)(11) and 516(b)(4). The court next considers three issues regarding backfilling and grading to restore land to its approximate original contour (AOC) under §515(b)(3) and (b)(16). The court initially holds that SMCRA gives the Secretary discretion over whether to issue detailed regulations implementing these subsections. The court next remands a regulation deleting specific time and distance standards that backfilling and grading must meet to qualify as contemporaneous under §515(b)(16). The Secretary did not adequately explain his conclusion that mine variations make these standards infeasible. The court also remands a regulation deleting numerical definitions of when overburden is thin or thick enough to justify an exemption from the AOC requirement under §515(b)(3) since the Secretary did not adequately explain the deletion. Finally, the court holds that the Secretary has adequately justified a regulation deleting specific numerical standards for terraces on grounds that terrace design must be site-specific.

The court next upholds a regulation requiring restoration of subsided land over underground mines. The court holds that §516(b)(10) does not authorize application of the general restoration requirements of §515 to underground mines. Those requirements ordinarily apply only to surface mines, and Congress intended to create separate performance standards for underground mines. However, §516(b)(1) requires mine operators to maintain the value and reasonably foreseeable use of land subject to subsidence. The court holds that the Secretary can reasonably construe this provision andits legislative history to justify requiring restoration of subsided land. Although the Secretary relied alternately on §§515(b)(1) and 515(b)(10), he adequately justified the regulation under §515(b)(1). The court next finds a challenge to regulations regarding reshaping of cut and fill slopes moot because the regulations have been remanded and withdrawn, and have not been repromulgated. The court sustains the Secretary's jurisdiction over offsite processing and support facilities for surface coal mining operations, holding that these facilities result from or are incident to those operations under §701(28)(B). The court finds it unnecessary to determine whether processing facilities must be at or near mine sites to fall under the Secretary's jurisdiction pursuant to §701(28)(A). The Secretary may reasonably construe §701(28)(B) to include processing facilities that are not at or near the mine site. The Secretary may also reasonably make the policy choice of employing a causal proximity requirement to limit the scope of the "resulting from or incident to" standard. The court also affirms the Secretary's treatment of railroads as support facilities under §701(28)(B). The court next upholds a regulation applying the hydrologically protective performance standards of §515(b)(10) to all alluvial valley floors. Although §515(b)(5) requires permit applicants to show only that operations will not disrupt those alluvial valley floors in the western United States that are significant to farming, the Secretary reasonably concluded that Congress also intended to protect all alluvial valley floors through the performance standards. Finally, the court upholds a regulation interpreting the provision of §522(a)(6) that prevents states from designating land as unsuitable for surface mining if substantial legal and financial commitments to such mining existed before January 4, 1977. The court holds that the Secretary could reasonably limit "substantial legal and financial commitments" to those made pursuant to long-term coal contracts.

The court next upholds a regulation providing that once an authorized surface mining operation commences, it becomes a validly existing right and may continue even if the land is subsequently designated as unsuitable for mining under §522(e). Legislative history showing that Congress did not want to disturb property rights, effect takings, or shut down operating mines suggests that validly existing rights are not limited to those existing when SMCRA was enacted. The court next strikes down a regulation that allows coal mining in national forests unless reclamation is not feasible. Section 522(e)(2) allows mining in national forests only if it is compatible with significant other values, which the Secretary may not limit to only those values that cannot eventually be reclaimed. Congress meant to give priority to nonmining uses of the national forests. The court next upholds a regulation that does not require underground mine operators to replace damaged water supplies under §717(b). The statutory language and legislative history suggest that §717(b) applies only to surface mines, not to underground mines. Section 508(a)(13)(C), which requires permit applications for underground mines to describe planned steps to assure water replacement as required by the statute, does not itself require water replacement, even if it authorizes the Secretary to require it. The Secretary acted reasonably under §516(d) to accommodate the differences between surface and underground mining. The court next upholds a regulation exempting senior water rights users, including mine operators, from having to replace water supplies that they use. Under §717(a), SMCRA does not affect any person's right to protect his water rights under state law. The water replacement requirement of §717(b) therefore does not apply to the extent that it would deprive anyone, including a mine operator, of his or her rights under state law to legitimately use water. The court also upholds a regulation defining the "anticipated mining" for which cumulative hydrologic effects must be considered in evaluating a permit application as limited to operations for which permit applications have been submitted and operations that must meet diligent development requirements for leased federal coal and for which there is actual mine development information. The court defers to the Secretary's balancing of the risks of imposing insufficient hydrologic safeguards on earlier mines against those of obstructing permit applications either by waiting for more data on future mines or by factoring in the effects of hypothetical mines. The court finds the Secretary's narrow definition of anticipated mining reasonable under §§507(b)(11) and 510(b)(3).

The court next upholds a regulation allowing retention of underwater highwalls in permanent impoundments. The court holds that under §701(2), impoundments must comply with §515(b)(8)(E), which requires grading of impoundments to provide safety and access for water users, rather than with §515(b)(3), which requires grading to eliminate highwalls. The court defers to the Secretary's judgment that the policies in favor of eliminating highwalls do not require eliminating them in all water impoundments. The court next upholds a regulation allowing storage of topsoil on host soils instead of in stockpiles as required by §515(b)(5) if stockpiling would damage the topsoil and certain other conditions are met. The court defers to the Secretary on this highly technical issue of how best to preserve topsoil productivity. Next, the court holds that §515(e)(1) does not allow variances from AOC requirements, and that §515(e)(2) allows such variances only for steep slope mining. The court next upholds a regulation requiring control only of that air pollution resulting from erosion. The language and legislative history of §515(b)(4) make this more reasonable than requiring control of all air pollution caused by mining operations. The court then sustains a regulation making geographic proximity a factor in determining whether a support facility results from or is incident to a mining activity and thus is subject to SMCRA jurisdiction. The Secretary's consideration of distance as well as function is neither irrational nor precluded by §701(28)(B). Finally, the court upholds a regulation interpreting §523(c), which requires the Secretary to retain the duty to approve mining plans on federal lands even if a state has entered into a cooperative agreement to regulate mining on those lands. The court holds that under §702(a)(8), mining plans under §523(c) include only those required by the Mineral Leasing Act and its current implementing regulations, which do not include SMCRA reclamation plans. Moreover, Congress sought to promote cooperative, unified federal-state review, not dual review. The court therefore holds that the Secretary may delegate review of SMCRA reclamation plans for federal lands to the states.

[Previous decisions appear at 9 ELR 20720; 10 ELR 20113, 20208, 20526; 11 ELR 20941; 14 ELR 20617; 15 ELR 20481, 20494; 16 ELR 20296.]

Counsel for Appellants
L. Thomas Galloway, Norman L. Dean Jr.
National Wildlife Federation
1412 6th St. NW, Washington DC 20036
(202) 637-3736

Counsel for Appellees
Arthur E. Gowran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2754

Before: WALD, Chief Judge, RUTH B. GINSBURG and SILBERMAN, Circuit Judges.